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How Israel Avoids Compensating Palestinians for Inflicted Damages

According to a new report published by B’Tselem last week, Israel refuses to compensate Palestinians for damages caused by its security forces. From September 2000 – when the second Intifada broke out – through February 2017, Israeli security forces killed 4,868 Palestinians who were not taking part in hostilities. More than a third of them (1,793) were under the age of 18.

Cover page of new B’Tselem report

Faced with this reality, Israel guaranteed itself a nearly blanket exemption from the obligation to pay compensation for all this harm. The state does not offer Palestinians harmed by its security forces a genuine opportunity to file for damages in Israeli courts, offering them no more than the illusion of being able to do so. By broadening the legal definition of what constitutes “warfare activity” and inclusive construal of this term by the courts, on the one hand, and introducing a series of procedural and evidentiary restrictions in legislation and case law, on the other, Israel has rendered virtually nonexistent the chances of Palestinian plaintiffs getting compensation for the harm they suffered.

Paying compensation to persons who have suffered injury to themselves or their property is not an act of charity – it is the state’s obligation under international law. Not compensating Palestinian victims severely infringes upon their human rights as they are denied redress for violation of the basic rights to life, physical integrity and property. Denying the right to receive compensation is tantamount to a violation of the right in itself: the significance of human rights is not limited to merely having them entrenched in some law or international covenant. If no sanctions are enforced when human rights are breached, the rights become moot and the perpetrators have no incentive to institute a change in policy.

Israel’s policy on paying compensation to Palestinians who have suffered harm reflects its profound contempt for the life, safety and property of Palestinians in the Occupied Territories. The state has also made it clear that, for its part, it bears no responsibility for the consequences of its control over the Palestinian population, both as the occupying power in the West Bank and as an external entity exerting control over the Gaza Strip. Israel’s powers as ruler, which it is quick to enforce when this serves its own purposes, vanish when it faces accountability for its actions.

The effects of the changes in legislation and in case law are evident in the figures the Ministry of Defense provided B’Tselem concerning compensation suits filed against the state by Palestinians from the West Bank and Gaza. The figures indicate two clear trends: First, fewer new claims are being filed with the courts. For example, 2002 to 2006 saw an annual average of 300 new lawsuits. In contrast, 2012 to 2016 saw an annual average of 18 claims – a mere 6% of the average a decade earlier.

The second trend is of Israel paying less compensation to Palestinians. From 1997 to 2001, the state paid an annual average of 21.6 million shekels (approx. USD 5.7 million) – in settlements or pursuant to a court verdict. In contrast, from 2012 to 2016, Israel paid a yearly average of about 3.8 million shekels (approx. USD 1 million) – a decline of more than 80% in comparison to the sums paid a decade earlier. The reduction in amounts paid to residents of Gaza during those periods is especially significant – from an average of 8.7 million shekels (approx. USD 2.3 million) a year to an average of about 280,000 shekels (approx. USD 74,000) a year, nearly 97% less. (In comparison, compensation for West Bank claimants dropped from an average of about 12.7 million shekels (approx. USD 3.3 million) to an average of about 3.5 million shekels (approx. USD 900,000) a year – approximately 72% less.)

One of the justifications Israel cites for refusing to pay damages to Palestinians is that it is a matter that should be resolved as part of mutual arrangements to be reached once the conflict is ended. This argument offers no more than irony. It might have been valid had the situation been one of conflict between two countries at war. Yet this year, 2017, marks fifty years since Israel began its occupation of the West Bank and the Gaza Strip. Israel is doing all in its power to prevent the end of the occupation and to establish facts on the ground that will prevent reaching any agreement with the Palestinians. Proposing that the tens of thousands of people injured during this half century wait for the occupation to end and for “negotiations” to be concluded is tantamount to assuring that they will never receive any compensation.

Israeli officials prefer not to make this explicit. After all, instead of using the avenue of legislation to ensure an exemption from compensating Palestinians, the state could simply have flatly refused to pay for damage caused by its troops. Similarly, the state could have declared that it does not intend to carry out criminal investigations of suspected harm to Palestinians. Instead, Israel elected to maintain a vast, expensive faux system, while making a show of a functioning system.

There are few kinds of injustice that cannot be codified in law, and it is possible to establish systems that offer no more than a pretense of law enforcement. Yet it is impossible to fully conceal the reality of the occupation, including the measures that Israel takes to evade responsibility and ensure a sweeping exemption – with no legal, administrative, or civilian accountability – for violent harm to the Palestinians who live under its control.